White House prepares for legal battles over acting labor secretary’s power.
The White House Faces Potential Lawsuit Over Julie Su
Excitement is brewing in Washington as the Biden administration attempts to keep Julie Su as acting labor secretary without Senate confirmation. This move has sparked controversy among business groups, Republicans, and even some Democrats who view it as legally questionable.
“By declining to act on Ms. Su’s nomination, the Senate is advising against the policies she has espoused and declining to consent to her leadership,” Flex, which labor secretary‘s power.”>represents gig economy companies like DoorDash, GrubHub, Lyft, and Uber, wrote to the White House Monday. “As a result, any action taken to finalize the proposed worker classification regulation under Ms. Su’s current leadership as acting secretary would circumvent the Senate’s constitutional role of providing advice and consent on nominees.”
While this letter does not explicitly threaten legal action, it hints at potential battles over Su’s authority as labor secretary and the legitimacy of her actions in that role.
Su assumed the position in March, replacing Marty Walsh who left to represent professional hockey players. Normally, the secretary of labor would be confirmed by a simple majority in the Senate, but President Biden is facing difficulties in making that happen for Su.
Instead, the administration is relying on legal ambiguity to keep her in place indefinitely. A White House official stated, “Upon Secretary Walsh’s departure, acting Secretary Su automatically became acting secretary under its organic statute, not under the Federal Vacancies Reform Act. As a result, Su is not subject to the time limits of the Federal Vacancies Reform Act and she can serve as acting secretary indefinitely.”
Despite Democrats holding a slim majority in the Senate, Senator Joe Manchin has expressed opposition to Su due to her “progressive background.” While Manchin’s defection alone would not tip the scales, other centrist senators have yet to declare their support or opposition.
One aspect of Su’s background that has drawn criticism is her involvement in California’s Labor and Workforce Development Agency, where she supported legislation that sought to restrict independent contracting. However, this legislation was later overturned by California voters.
Senator Jon Tester has made it clear that he does not support keeping Su in an acting capacity without confirmation, likening it to the actions of former President Donald Trump. Tester stated, “I don’t support that myself. I didn’t support it in the last administration. I don’t support it in this one. I just think there’s much more certainty if you’ve been confirmed.”
Trump faced ridicule for keeping cabinet members in acting roles to bypass Senate confirmation. Biden, who pledged to restore normalcy to Washington, may now face similar pressure due to his commitment to being the most pro-union president in history.
Former White House chief ethics lawyer Richard Painter argues that the Su controversy has become a typical occurrence in Washington, where Congress has become ineffective at reining in executive power. Painter notes the inconsistency between Democrats’ outrage over Trump’s actions and their silence when Biden made significant decisions without congressional approval.
While there may be no legal barriers preventing Su from continuing to perform her role in an acting capacity and finalizing new agency rules, the situation becomes murkier when it comes to implementing controversial rules without a Senate-confirmed secretary.
White House officials maintain that Su’s actions leading the Labor Department would face challenges regardless of her confirmation status, and they defend the job she has done so far. Press secretary Karine Jean-Pierre stated, “[The president] nominated her because he believed that she was eminently qualified to do the job, and she has done it in a brilliant way.”
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